Ontario Women’s Justice Network

Understanding the Family Law Courts and Process

If you have survived abuse and want to get custody of your children or want to separate or get a divorce from your abuser, these and other matters involving family are dealt with in the family law system.This article will give you basicinformation about the family law system and how to navigate it.

If you need information about pressing criminal charges if you have suffered violence such as, sexual assault (rape or any other unwanted sex acts, like touching or grabbing), assault (hitting, beating etc.), the threat of assault, or criminal harassment (stalking), please see the article “Basic Legal Information for Women Experiencing Violence – The Criminal Justice System.”

Introduction to the Family Law System:

You have a family law matter if you are dealing with issues such as:

Separation

Divorce

Children, including the time they spend with each parent

Dividing family property between you and your spouse

Determining who will live in the family home

Support for you, your partner or your children after your relationship ends

Adoption

Child protection (Children’s Aid Society matters)

Family Law Legislation and Family Law Rules

Depending on your family law issue, one or more of the following laws may apply to your case:

Federal Divorce Act. This Act will apply if you are legally married and are seeking a divorce. It deals with divorce, as well as claims for child and spousal support, and custody and access, and division of property.

Family Law Act. This Act deals with spousal and child support, division of property and the possession of the matrimonial home.

The Family Law Rules. These rules govern the processes and procedures that a person must follow when bringing matters before the Family Court of the Superior Court of Justice, in the Superior Court of Justice and in the Ontario Court of Justice.

Children’s Law Reform Act. This Act deals with custody of children and access to children, and the rules to establish parentage of a child.

Child and Family Services Act. This Act outlines the powers and responsibilities of children’s aid societies. In addition, the Act sets out the rules governing the adoption of children

Family Responsibility and Support Arrears Enforcement Act. This outlines the responsibilities of the Family Responsibility Office to collect child support and spousal support payments.

Interjurisdictional Support Orders Act. Thisoutlines the methods to apply for a support order or a change of an existing support order in another Canadian province or reciprocating jurisdiction

Options to Resolve Family Law Issues

There are various options available when attempting to deal with a family law related matter. A few of the options are as follows:

To learn more about these options, more information is available below. Note that some of these options are not recommended for women in abusive relationships.

The Family Court System

In Ontario, family law matters are heard before the Ontario Court of Justice, the Superior Court of Justice or the Family Court branch of the Superior Court of Justice. The Family Court branch of the Superior Court of Justice (sometimes called the Unified Family Court) is the only court in Ontario that can hear all types of family law cases. Unfortunately, these are not located in every city or town.

If there is no Unified Family Court in your municipality, you have to decide which court to start your case in. Make sure that you start your case in the municipality where you or the other person lives (or if there are children involved, where the children ordinarily live). Also, make sure the court can deal with that type of matter.

The Ontario Court of Justice will hear these types of cases:

Child custody and access;

Child and spousal support;

Adoption; and

Child protection.

The Superior Court of Justice will hear these types of cases:

Divorce;

Division of property;

Child and spousal support; and

Child custody and access.

An application starts the court process. “Application” means the forms and documents a person must complete to start a family case. It tells the court what you are asking for; for example, a divorce, child custody or spousal support. An application provides the background facts and information about your case. It also provides important background about the history of your relationship and any children you have. The person who makes the application, and starts the process, is the called the applicant. The other person or persons responding to the application is called the respondent.

There are several steps that you will need to take before a judgecan make a final decision in your family case. Many of these steps encourage you and the other party to try and settle as many of the issues as possible early on, so that you do not have to go to trial. A trial can take a long time and may be a very difficult and expensive experience for you and your family.

Case Conference

The Family LawRulesprovide you and the other party with opportunities to have case conferences, settlement conferences and trial management conferences. These events are meant to help you and your ex-partner “settle” your case out of court. To settle means that you both reach an agreement out of court about how to deal with the issues like custody, support and property. You and the other party can always decide to settle on your own, even after a family case has started. It is not necessary to wait for a conference to try to resolve your issues, but it is always recommended to have a lawyer look over any agreement before you sign it.

The first time you will speak to a judge about your case is called a case conference. All the parties named in the family case must go to the case conference. If you have a lawyer, your lawyer must attend the conference with you. A case conference can be held in a courtroom or in a conference room or the judge’s office. A case conference can also be held by telephone or videoconference, with the permission of the judge. When you get to court on the day of your case conference, you can check for your name and court file number on a case event list which will be posted outside a courtroom to see where the conference will be held, or you may ask court staff.

For women who have been in abusive relationships this can be difficult because it requires that you face your abuser and talk to him. It is recommended that you get a lawyer to represent you.

Settlement Conference or Trial Management Conference

If the judge thinks that another conference is necessary, he or she can schedule another case conference. The judge may also schedule a settlement conference or a trial management conference.

The settlement conference or a trial management conference is similar to a case conference and your preparation steps are similar as well.

For women who have been in abusive relationships this can be difficult because it requires that you face your abuser and talk to him. It is also recommended that you get a lawyer to represent you.

Trial

If you and the other person are not able to work out the issues in your case on your own or if the issues are too complicated, the judge may order the case to a trial. A trial will be before a judge and each party will present its case to the judge. At a trial the lawyers will be present, as well as you and your spouse, and the judge will hear from the witnesses.

Judges decide family cases, and this means that there is no jury involved. Trials are usually open to the public, which means there may be other people in the courtroom when your trial is being held. If you have strong reasons for not wanting the public in the courtroom, you can ask the judge not to let anyone in, other than the parties, their lawyers, and courtroom staff. The judge may not grant your request.

If your application involves asking for custody of your children the judge will often talk about the best interests of the child. This means the judge is trying to find out what is working well in the child’s life and how to keep things safe and stable for the child during the separation or divorce of his or her parents.

There will be Duty Counsel at the courthouse. If you do not have a lawyer you should speak to duty counsel. They are lawyers at the courthouse that can help you. They are usually very busy, so get there early. Duty counsel provide only basic information and advice. They only provide short-term help and do not give full representation to clients.

Common Terms You Will Hear in Family Matters & Court:

These are some common terms that you may hear when going through a family matter and through the court system:

Children’s Aid Society (CAS): this is a government agency that makes sure children are safe from abuse (being hurt) or neglect (uncared for). If a child is thought to be in need of protection, the CAS will get involved. In Toronto, there are four different CAS agencies working to protect children (Children’s Aid Society, Catholic Children’s Aid Society, Jewish Family & Child Services, and Native Child & Family Services).

Custody and access: this describes how a child is cared for after parents separate. The parent or parents with custody have the legal right and responsibility to make decisions about the child’s life. Access means a parent can spend time with a child. The amount of time a parent can spend with a child will vary from case to case.

Child Support Guidelines: these set out how much money one parent must give to the parent with custody for the support of their child.

Family Responsibility Office (FRO): this is a government office that helps parents get the child support and spousal support owed to them if they have a court order.

Places to go for more family law information and to find legal help:

There are 6 Family Law Service Centres (run by Legal Aid) around the Greater Toronto Area (GTA). They can provide more information on the family law process, help with court forms, give referrals and legal advice.

FLICs offer free assistance and information on family law issues. FLICs are located in most courts that deal with family law matters, and meet the needs of clients who do not have a lawyer, or are new to the court system. You can find brochures and information about family law in Ontario, or speak with an advice lawyer.

Other Websites:

Information on OWJN is not legal advice

OWJN contains general legal information only. OWJN does not give legal advice. If you need legal advice, you should contact a lawyer, who can help you make decisions about your legal rights. You may be eligible for legal advice from a community Legal Aid clinic.